Application of Copyright on Folklore
The Berne Convention of 1971 affords copyright protection for literary, artistic and musical as well as theatrical works as well as scientific domain. All these form part of folklore and folk traditions and as such copyright laws must apply in equal measure to all subsets of folklore to protect originating communities.
In India, the Indian Copyright Act, section 38, stipulates that any performer has a performer’s right related to the performance and this is deemed to mean and include indigenous artists and this right stays in force for 25 years and anyone who contravenes that stipulation by making an audiovisual recording and exploiting it commercially infringes the performer’s right save and except where he uses it for educational or reporting purposes.
This law is inherently flawed in that it protects only the individual or group performers but does not factor in the originating community and, secondly, 25 years is a short duration. The remedy is to vest rights in the community that originated that art form.
Copyright and Intellectual Property laws need to coalesce since there are commonalities, in order to offer stronger protection and safeguards for folklore material in any form. Certain terms of copyright laws may be difficult to define or adhere to in this context such as attributing originality and creators but still it can be done.
One such way is in which trademarks serve to bolster copyright laws as applicable to folklore. Communities may register names, symbols, designs and other intellectual creations as trademarks and restrict their general use but the major obstacle is that trademark pertains to commercial and industrial segments.
Given existing laws and their implementations one can infer that protection of folklore copyright is difficult and necessitates major changes in IP and copyright laws, supported by judiciary and implemented by legislative action.
IP is perceived as not being suitable to protect folklore creations but there are different interpretations as to how and why. Indigenous communities, the creators and actual owners of folklore products find IP ineffectual because it does not protect their collective communal creation, the result of generations of work by people unknown. The other group not happy with current IP protection may be public minded people who take the stand that such protection erects a wall against free flow of information and hampers progress of mankind. What all this means is that there is an urgent need for reforms from the ground up as far as folklore, IP and Copyright are concerned.